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16:1021(135)CA AFGE VS HHS, SSA -- 1984 FLRAdec CA

[ v16 p1021 ] 16:1021(135)CA
The decision of the Authority follows:

16 FLRA NO. 135

SOCIAL SECURITY ADMINISTRATION AND
SOCIAL SECURITY ADMINISTRATION, FIELD
OPERATIONS, NEW YORK REGION
Respondent
and
DOUGLAS CHAUVIN, AN INDIVIDUAL
Charging Party
Case No. 2-CA-20342
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party/Union
Case No. 2-CA-20345

The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged in the
unfair labor practices alleged in the consolidated complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the General
Counsel filed exceptions to the Judge's Decision.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and
section 7118 of the Federal Service Labor - Management Relations Statute (the
Statute), the Authority has reviewed the rulings of the Judge made at the
hearing and finds that no prejudicial error was committed. The rulings are
hereby affirmed. Upon consideration of the Judge's Decision and the entire
record, the Authority hereby adopts the [ v16 p1021 ] Judge's findings,
conclusion that the meetings at issue were not "formal" in nature, and
recommended Order.

The Authority has held that all elements of section 7114(a)(2)(A) must
exist for a meeting to be a formal discussion at which an exclusive
representative has a right to be given the opportunity to be represented.
Bureau of Government Financial Operations, Headquarters, 15 FLRA No. 87 (1984).
As the Authority has concluded that the meetings herein were not formal in
nature, it is unnecessary to address the other elements of section
7114(a)(2)(A).
1

Accordingly, the Authority shall dismiss the complaint in its entirety.

This is a proceeding under Title VII of the Civil Service Reform Act of
1978, Pub. L. No. 95-454, 92 Stat, 1192, 5 U.S.C. 7101 et seq. (Supp. V, 1981),
commonly known as the Federal Service Labor - Management Relations Statute, and
hereinafter referred to as the "Statute", and the rules and regulations issued
thereunder and published at 5 CFR 2411 et seq.

Pursuant to a charge filed by Douglas Chauvin on April 1, 1982, and
amended on June 18, 1982, the Regional Director of Region 2 of the Federal
Labor Relations Authority (hereinafter, the "Authority") investigated and filed
the complaint in Case No. 2-CA-20342.

Pursuant to a charge filed by the American Federation of Government
Employees, AFL - CIO (hereinafter, the "Union" of "AFGE"), on April 5, 1982,
the Regional Director of Region 2 investigated and filed the complaint in Case
No. 2-CA-20345.

On August 26, 1982, the two cases were consolidated for hearing. The
consolidated complaint alleges that Respondents
2
committed unfair labor practices, in violation of 5 U.S.C. 7116(a)(1), (5), and
(8) of the Statute,
3
when its Equal Employment Opportunity Officer, Sandy McRae, [ v16 p1024 ]
conducted informal equal employment opportunity ("EEO") complaint resolution
meetings with bargaining unit employees. The complaint alleges that these
meetings, were "formal discussions," within the meaning of 5 U.S.C.
7114(a)(2)(A), and were held in violation of the Statute because they were held
without prior notice to the Union and affording it an opportunity to be
represented. Respondent denies that the meetings occurred, and that any
statutory violations were committed.

A hearing on the consolidated complaint was held on December 6, 1982, in
New York City, NY. The parties appeared, adduced evidence, and examined
witnesses. The General Counsel and Respondent submitted briefs dated January 4,
1983. Based upon the record made in this proceeding, my observation of the
demeanor of the witnesses, and the briefs, I enter the following findings of
fact and conclusions of law, and recommend the entry of the following order.

1. It is admitted that Respondent is and has been an agency within the
meaning of 5 U.S.C. 7103(a)(3).

2. It is admitted that the Union Charging Party is now the certified
exclusive representative of a consolidated nationwide unit of certain employees
of Respondent, and a labor organization within the meaning of 5 U.S.C.
7103(a)(4). [ v16 p1025 ]

3. It is admitted that, at all times material herein, Respondent has
recognized the New York - New Jersey Council of SSA District Office Locals,
AFGE, as the delegated representative of AFGE for purpose of collective
bargaining on behalf of certain employees of SSA in its Region II, and that
Local 3369 of AFGE has been and is now an agent of the New York - New Jersey
Council.

4. At all times material herein, Respondent and the New York - New
Jersey Council operated under a collective bargaining agreement signed on
January 15, 1976 and made effective on March 22, 1976. See Jt. 1. After passage
of the Civil Service Reform Act of 1978, the parties amended the article on
official time. See Jt. 2. Since June 1982, a new contract has been in effect.
It is the position of Local 3369 that, under the 1976 contract, an employee
could file an EEO complaint under the contractual grievance procedure.
Respondent takes a contrary view. The issue was never arbitrated, because no
EEO grievances were filed under grievance procedures of the 1976 contract.
Respondent's view is based on Section 1 of Article XXXIV of Jt. 1, which
provides:

The Union and the Employer agree that grievances and complaints should
be settled in an orderly, prompt, and equitable manner which will maintain the
self-respect of all parties involved. Every effort will be made by supervisors
and officials of the Union to settle grievances at the lowest level of
supervision. This procedure may not cover matters for which a statutory appeal
procedure exists and so long as it does not otherwise conflict with statute or
Executive Order 11491, as amended. All time limits stated within this procedure
may be extended by mutual consent.

5. Douglas Chauvin, the Charging Party in Case No. 2-CA-20342, has been
the EEO Coordinator for Local 3369 since June 1980. At all times material
herein, Mr. Chauvin has been an SSA employee, at its Jamaica office. Since
becoming EEO Coordinator, he has handled a couple of dozen EEO complaints.
Around June 1982, he was also appointed the Sixth Vice - President for
Grievances for Local 3369. As EEO Coordinator, he represents employees in all
stages of the EEO complaint process, gives advice to employees and union
officials about EEO matters, and trains union officials concerning such
matters. As a general rule many EEO referrals come to him through the office of
Local 3369. He has never been designated as a representative of Local 3369, at
an EEO meeting. In his opinion, he acts as the personal representative of the
complainant, at EEO meetings, and finds that the interest of the complainant
and Local 3369 are sometimes in conflict at such meetings. Mr. Chauvin receives
official time for EEO representation duties. For attendance at EEO meetings, he
has not received any official time for union representational activities, under
the negotiated agreement of the parties. [ v16 p1026 ]

6. There has been a continuing dispute between the parties as to how
much time Mr. Chauvin is allowed for his EEO activities. The union position is
that, as a union official, Mr. Chauvin should receive official time, under the
collective bargaining agreement, for EEO matters. Respondents maintain that
there are statutory provisions under Title VII of the Civil Service Reform Act
for granting official time to perform EEO work. Respondent allows Mr. Chauvin a
maximum of 8 hours, for the pre-investigative stage of an EEO complaint, and a
maximum of 24 hours thereafter. These allowances are taken from government
regulations on EEO matters which suggest them as "guidelines for reasonable
amounts of time" (Tr. 103).

7. The EEO process here involved begins with a complainant seeking out
an EEO Counselor. The Counselor receives information from the complainant and
then talks to appropriate management officials. The Counselor advises the New
York Regional Office of the Social Security Administration ("SSA") of the
complaint. The Counselor reports to the complainant on management's response to
the complaint, and may state that there was no information to support it. The
Counselor then advises the complainant that he or she can file for an
investigation, 15 days from receipt of a "final notice" (Tr. 133). At that
point a complainant may write a request for an investigation to SSA's Office of
Personnel Systems Integrity in Washington. If such a request is made, an
investigator is assigned from Washington or Baltimore. The investigator comes
into the Region and does an in-depth investigation, which may include the
taking of sworn statements. The investigator prepares an EEO complaint file,
which is shipped to the Region's EEO office. Copies of the file are sent to the
complainant and management for comment.

At any stage during the entire process, the EEO Coordinator in the New
York Regional Office can attempt an informal resolution of the complaint. Such
an attempt has to be attempted before the file can be returned to SSA's office,
in Baltimore, for a decision. The resolution attempt can, but need not be a
face-to-face meeting. In most instances, the alleged discriminating official is
not brought into the informal resolution meeting. Someone above that level
participates for management.

If the informal resolution attempt is successful, a written statement of
the details is prepared. If unsuccessful, a general summary of the attempt is
prepared; and the file, with the summary and any comments and additional
documentation from the complainant or the management representative, is sent to
SSA, in Baltimore, for an agency decision. The agency issues a decision and
then, within about two weeks or a month, if things work out well, the
Department issues a decision.

At this stage, the complainant can request a hearing on the decision, or
a decision on the file itself. This request is made to the [ v16 p1027 ]
Department, which, in turn, requests the Equal Employment Opportunity
Commission ("EEOC") to conduct a hearing or issue a ruling, whichever the
complainant has requested. EEOC renders a decision which is given to the
Department. The Department can amend, accept, or reject the decision. At this
stage, the complainant can ask EEOC for a final decision. If the EEOC ruling is
against the complainant, the complainant can then take the case into Federal
court.

An EEO official of the SSA Regional Office in New York testified that
the skeletal framework for the above process is provided in EEOC regulations,
issued pursuant to public law,
5
and that, in addition, the process tracks departmental and agency regulations,
and regional practices. See Tr. 138. The departmental and agency regulations
were not adduced or cited. However, this testimony was not disputed at the
hearing, or in the briefs filed by the parties, and, for purposes of this
decision, is accepted as true.

8. All three of these meetings here at issue involved formal EEO
complaints. The meetings were all held in a conference room away from the
workplaces of the complainants. They were held for the sole purpose of reaching
an informal settlement of the EEO complaints, all filed by employees
represented by Local 3369. The meetings were held pursuant to specific
regulations dealing with EEO complaints. Each meeting was called by Sandy
McRae, who acted as the EEO Coordinator. Her title is "Civil Rights and Equal
Opportunity Manager for the New York Region" (Tr. 132). Her role at the
meetings was to bring the parties together and try to find some sort of common
ground between them. She acted "(s)ort of like a facilitator" (Tr. 144). She
tried to make sure that everyone had a chance to speak. None of the alleged
discriminating officials attended the meetings. Management was represented at
each by an official holding authority to settle the matter at issue. The
purpose of each meeting was to discuss possible remedies, but not the merits of
the matter. Such discussions took place. No confrontational situations were
shown to have arisen at the meetings.

9. The President of Local 3369, since December 1979, has been John
Riordan. As President, he is the primary representative of all employees,
represented by the union, on grievances. Under the contract in effect at the
time of the meetings, Mr. Riordan appointed the representatives to individual
employees. On EEO complaints, employees choose their own representative,
however. At the times here material, Mr. Riordan was the union official to
receive notices of formal discussions from SSA. He received no prior notice of
the meetings here at issue, from SSA. Mr. Chauvin did advise him, on March 26,
of March 29 meetings. Mr. Riordan then appointed himself to represent [ v16
p1028 ] the union at these meetings, and so advised SSA's labor relations
office. This office advised Mr. Riordan that he would not be allowed to attend,
as the meetings were not formal discussions. Mr. Riordan then contacted the
Assistant Equal Employment Officer for the New York Region, about his
attending. She replied that she knew nothing about union representation at EEO
informal resolution meetings, and that there was no EEO regulations concerning
it. She affirmed that he would not be admitted to the meetings.

The March 2, 1982 meeting

10. On February 25, 1982, Jean - Louis Dumaine requested that an
informal resolution meeting be arranged concerning an EEO complaint he had
filed. His complaint alleged that high-quality increases were being awarded on
the basis of sex at this office, the Avenue X District Office, where he worked
as a claims representative. He asked that the meeting be attended by Mr.
Seifer, the Deputy Assistant Regional Commissioner, Ms. McRae, Mr. Chauvin and
himself. The next day, Ms. McRae called him to arrange a meeting. She suggested
a date; he suggested the time. He told her he would check with Mr. Chauvin to
determine whether the date and time were agreeable with him. Mr. Dumaine called
Mr. Chauvin, who agreed to the date and time. Because Mr. Dumaine had informed
Mr. Chauvin that he would be calling Ms. McRae back, Mr. Chauvin asked him to
ask her for one hour of official time to prepare for the meeting. Ms. McRae
denied the request for one hour on the ground that Mr. Dumaine and Mr. Chauvin
had already used the allotted eight hours during a prior preparation session.
At all times material herein, Mr. Umaine was the on-site representative for
Local 3369 at the Brooklyn District Office of SSA. An on-site representative is
the primary union job in a given office.

11. On March 2, 1982, the meeting was held. In attendance, besides Ms.
McRae and Dumaine, were Mr. Chauvin and Joe Rosenberg. Mr. Rosenberg was he
Acting Manager of the Claims Review Input Section and, for purpose of the
meeting, was taking the place of Mr. Seifer and acting with his full authority.
The meeting lasted for over an hour.

12. Mr. Chauvin was contacted by Mr. Dumaine upon being referred to him
by an official of Local 3369, who called Mr. Chauvin "an individual who handled
the processing and preparation of EEO complaints for the Local" (Tr. 112). Mr.
Dumaine signed a form authorizing Mr. Chauvin to act as his representative. At
a meeting with an EEO Counselor concerning the complaint, Mr. Chauvin was
introduced as the representative of Mr. Dumaine.

13. The basic remedy sought by Mr. Dumaine was a high-quality award. He
also sought information concerning what criteria were used for determining what
individuals would have to do, in order to quality for such an award. He also
asked that no information regarding his complaint [ v16 p1029 ] be disclosed by
SSA to any other possible employer. At the March 2 meeting, these remedies were
discussed. At the meeting, Mr. Rosenberg asked and answered questions about the
remedies of Mr. Dumaine. No resolution of the complaint was effectuated at the
meeting.

14. On March 8, 1982, Mr. Chauvin wrote a letter to Ms. McRae in which
he asked her if she had notified Local 3369 about the March 2 meeting.

A meeting to attempt to resolve an EEO complaint is an established part
of the EEO process and is separate and distinct from the labor relations
process. Under EEO procedures we are not required to advise the Union (or a
Local office) when we meet to attempt an informal resolution. We are only
required to notify a management representative and the complainant's
representative; unless the complainant specifies to the contrary. This
procedures is in keeping with our policy to issue the confidentiality of
individuals utilizing the EEO process.

See GC 3.

The first meeting on March 29, 1982

16. Prior to this meeting, Ms. McRae contacted Mr. Chauvin to arrange a
convenient time and place to hold it.

17. On March 29, 1982, the first of two EEO meetings were held. In
attendance were the EEO complainant, Carmen Zavala; her chosen representative,
Mr. Chauvin; Ms. McRae; and John J. Moorehead, Jr., the Area Director for SSA
offices in Manhattan, Staten Island, Brooklyn, Bronx, Westchester, and part of
Rockland County. The meeting lasted for over an hour. Ms. Zavala's EEO
complaint had already gone through the informal process with the EEO Counselor,
an investigation, and a report issuance which had been received. Ms. McRae
arranged for the meeting after it became apparent to her that management might
be willing to do something about the complaint.

18. Ms. Zavala sought items of relief which Mr. Moorehead could grant.
Ms. Zavala was then working in the Downtown District Office and her complaint
alleged problems with her supervisor. The discussion at the meeting explored
various terms for resolving the matter. Mr. Moore head asked questions of Ms.
Zavala. The discussion did not center on any [ v16 p1030 ] employee other than
Ms. Zavala. A resolution was not reached at the meeting. Ms. Zavala and Mr.
Chauvin did make some proposals, including a transfer. The meeting concluded
with them agreeing to put the proposals in writing and submitting them for
consideration by management. The primary relief sought by Ms. Zavala was a
transfer.

19. The Zavala EEO complaint was ultimately settled by the signing of a
document, on April 26, 1982. The remedies agreed to were a purging of certain
documents from the personnel file of Ms. Zavala; her transfer to another
District Office; an agency commitment not to penalize her when considering her
requests for transfers, promotions, or other terms or conditions of employment;
an agency commitment not to disseminate the facts and circumstances which led
to the filing of this charge to any other employer or potential employer, or to
any parties other than those who could demonstrate a legitimate need to know
this information and a similar non-communication commitment from Ms. Zavala and
Mr. Chauvin.

20. Transfers to other offices are sought by employees through "a 4100
procedure" (Tr. 128). It is possible that some other employee may have wanted
the transfer given to Ms. Zavala. However, such transfers happen quite often,
as the offices supervised by Mr. Moorehead are "constantly in need of people"
(Tr. 129).

The second meeting on March 29, 1982

21. Prior to this meeting, Ms. McRae contacted Mr. Chauvin to arrange a
convenient time and place to hold it.

22. Present at this meeting were the EEO complainant, Mr. Chauvin; his
representative, chosen by Mr. Chauvin and not by the union, Joel Sneck, who
also happened to be the union on-site representative at the Williamsburg office
and a shop steward at the Bushwick office; the District Manager of the Freeport
office, Richard Robbins; and the EEO officer, Ms. McRae. The substance of Mr.
Chauvin's complaint was alleged discrimination on the basis of national origin
and reprisal. The meeting lasted for less than 15 minutes, according to Mr.
Chauvin, and two or three hours, according to Ms. McRae. Mr. Chauvin seemed
surer of the time than Ms. McRae, and so I credit him as to the length of the
meeting. During the meeting, there was some interchange amongst the attendees.
Mr. Robbins had the authority to resolve the complaints of Mr. Chauvin. There
was no resolution at the meeting, however.

The case of the General Counsel rests upon the Authority's decision in
IRS Fresno Center, 7 FLRA No. 54, 7 FLRA 371 (1981) (hereinafter, the "IRS"
case). See GCBr 3, 9, 13, and 16. In that case, the Authority held, inter alia,
that a meeting held in conjunction with an EEO complaint, and whose purpose was
an informal resolution of that [ v16 p1031 ] complaint, was a "formal
discussion" within the meaning of 5 U.S.C. 7114(a)(2)(A). In that case, IRS
asserted that, "to hold a meeting such as here involved is 'always a formal
discussion,' which entitles the union as a matter of course to an opportunity
to be represented, directly conflicts with Equal Employment Opportunity
Commission regulations and the Privacy Act" (7 FLRA at 376, fn. 9). In response
to that assertion, the Authority limited its holding "only" to "the specific
circumstances of the (IRS) case" (ibid).

On the basis of the different "specific circumstances" of the instant
case, Respondents urges that a different result is warranted. See RBr 7. These
differences are marked. In IRS, the management official involved in the merits
of the EEO matter (the branch chief of the section where the complainant was
being assigned at a grade level she regarded as sex-based) "instructed" to her
attend the meeting (7 FLRA at 384). He also "chaired" the meeting (7 FLRA at
385). At the meeting, he had a confrontation with the complainant's
representative over the representative taking too active a part in the meeting.
He discussed the merits of the case with the complainant, and asked the
complainant a number of questions about it. Although an EEO Officer and an EEO
Counselor were present, they assumed passive roles; and one requested the
branch chief to chair the meeting. See 7 FLRA at 385.

In contrast, in the instant case, the EEO official arranged, conducted,
and controlled the meetings in accordance with EEOC, departmental, and agency
regulations applicable to EEO complaints. She acted as a "facilitator," made
sure that everyone had a change to speak, and tried to find a common ground
between the representatives of management and the complainant. Attendance by
the EEO complainants was not shown to be mandatory. Indeed, at least one of the
complainants requested that the meeting be arranged. See finding 10, supra. The
merits of the complaints were not discussed - only possible remedies that might
be acceptable to both parties. No confrontational situations were shown to have
arisen at the meetings.

In two companion cases, the Authority has recently articulated the
criteria to be considered and weighed in determining whether a "formal
discussion", in the statutory sense, has been held. See Department of Health
and Human Services, Social Security Administration, Bureau of Field Operations,
San Francisco, California, 10 FLRA No. 24, 10 FLRA 115, 118 (1982) and 10 FLRA
No. 25, 10 FLRA 120, 124 (1982) (hereinafter, the "SSA" cases). These criteria
are:

(1) whether the individual who held the discussion is merely a
first-level supervisor or is higher in the management hierarchy; (2) whether
any other management representatives attended; (3) where the individual
meetings took place (i.e., in the supervisor's office, [ v16 p1032 ] at each
employee's desk, or elsewhere); (4) how long the meeting lasted; (5) how the
meetings were called (i.e., with formal advance written notice or more
spontaneously and informally); (6) whether a formal agenda was established for
the meetings; (7) whether each employee's attendance was mandatory; or (8) the
manner in which the meetings were conducted (i.e., whether the employee's
identity and comments were noted and transcribed).

These criteria apply as follows to the instant case.

1. The individual who held the discussions was not a supervisor of the
employees, either first level, or higher. She occupied a special role, mandated
by statute and EEOC regulations to carry out the equal employment opportunity
programs of Federal agencies and departments. The Civil Rights Act of 1972, 86
Stat. 103, 42 U.S.C. 2000e - 16, prohibits discriminatory practices in the
Federal Government; grants enforcement Authority to EEOC; requires EEOC to
issue rules, regulations, orders and instructions as it deems necessary and
appropriate to carry out its responsibilities; and requires departments and
agencies to comply with such. See 42 U.S.C. 2000 e-16(b). In its regulations,
EEOC set up the framework under which the meetings here at issue were held. See
29 CFR 1613.217, providing that "(t)he agency shall provide an opportunity for
adjustment of the complaint on an informal basis after the complainant has
reviewed the investigative file." In its regulations, EEOC requires agencies to
designate a Director of Equal Employment Opportunity and other persons to
assist the head of agency to provide, inter alia, for the "prompt, fair, and
impartial consideration and disposition of complaints involving issues of
discrimination on grounds of race, color, religion, sex, or national origin."
See 29 CFR 1613.203(b) and 204(c). This was the role played by the person who
held the meetings here at issue. While she was appointed to her job by
management, she did not act as a partisan representative for management, at the
meetings.

2. One person representing management attended each meeting. At each
meeting, he held authority to settle the complaints, but could not force
settlement upon the complaining employees, and did not discuss the merits of
the complaints.

3. The meetings were held in conference rooms, away from the worksites
of the employees.

4. The meetings were apparently sufficiently long to explore the
settlement possibilities of the complaints. [ v16 p1033 ]

5. The meetings were arranged, in advance, to accommodate all the
participants, by the Equal Employment Coordinator.

6. The agenda, at each meeting, was a predetermined one - to try to
settle the complaints.

7. Attendance of the employee was not mandatory. Indeed, one meeting was
held at the request of the employee.

8. As the "manner" in which the meetings were conducted, they were not
shown to be confrontational. The alleged discriminating official were not even
present. There was no evidence that notes or transcriptions were made. Of
course, the identity of the employees was known to management. The presiding
official saw to it that everyone had a chance to speak and tried to bring the
parties together in seeking out a mutually agreeable remedy. No effort was
shown to force any party to do anything.

The Authority, in the SSA cases, did not indicate how much weight should
be given to each of the factors to be considered. In this case, I place the
most importance upon factors 1, 7 and 8. Number 1, the presiding official acted
as a "facilitator", seeking to assist the parties in resolving the complaints,
and not acting in a partisan manner toward either. She did not act as a
supervisor, but rather performed the role assigned to her under the Civil
Rights Act and regulations of the EEOC. Number 7, the employees did not have to
attend. Number 8, the meetings were conducted in a fair manner, with no one
forced to accept any offer made, and with no confrontations erupting.

Based upon these factors, I conclude that these EEO complaint resolution
meetings do not belong within the statutory framework of "formal discussion(s)
between one or more representatives of the agency and one or more employees."
Rather, they fall within the caveat footnoted by the Authority, in the IRS
case, that not every meeting held in conjunction with the processing of a
complaint of employment discrimination is a "formal discussion," within the
meaning of 5 U.S.C. 7114(a)(2)(A). See 7 FLRA at 376, fn. 9.

Judge Garvin Lee Oliver recently reached a similar conclusion in Harry
S. Truman Memorial Veterans Hospital, Columbia, Missouri, Case No. 7-CA-20125,
OALJ-83-33 (Dec. 15, 1982). The General Counsel refers to, and distinguishes
this decision, at pages 12-13 of the brief. The General Counsel notes that an
informal EEO complaint was there involved, and that the meeting was conducted
by an EEO counselor, who can be, and [ v16 p1034 ] often is, a bargaining unit
employee. See GCBr 12-13. The General Counsel contrasts this case, where the
complaints were formal ones; and the meetings were conducted by a higher-level
EEO official. While these distinctions exists, they do not call for a different
conclusion.

Accordingly, I conclude that none of the meetings here at issue were
"formal discussions" in the statutory sense of 5 U.S.C. 7114(a)(2)(A). Whether
or not the union received proper prior notice of the meetings, an issue raised
by the parties, is one which need not be resolved therefore. Other issues
raised by Respondent also need not be resolved, since the recommended order is
to be the dismissal of the complaint. However, the facts necessary to resolve
these issues have been found.

Footnote 1 The Authority notes that the meetings
herein occurred after the filing of EEO complaints. EEO meetings occurring at
the informal pre-complaint counseling stage have been held not to be formal
discussions within the meaning of the Statute. See Internal Revenue Service,
Fresno Service Center, Fresno, California v. Federal Labor Relations Authority,
706 F.2d 1019 (9th Cir. 1983), reversing the Authority's decision in Internal
Revenue Service, Fresno Service Center, Fresno, California, 7 FLRA 371 (1981).

Footnote 2 At times, the parties refer to, and
treat the named Respondents as a single entity. At other times, they refer to
the Social Security Administration as the "agency" and the Department of Health
and Human Services as the "Department." For the purposes of this decision, they
will be referenced as a single "Respondent."

Footnote 3 U.S.C. 7116(a) delineates the
following as unfair labor practices by an agency- (1) to interfere with,
restrain, or coerce any employee in the exercise by the employee of any right
under this chapter;... (5) to refuse to consult or negotiate in good faith with
a labor organization as required by this chapter; (and)... (8) to otherwise
fail or refuse to comply with any provision of this chapter. One "provision" of
the chapter is that found in 5 U.S.C. 7114(a)(2), dealing with
"(r)epresentation rights and duties." It provides that: An exclusive
representative for an appropriate unit in an agency shall be given the
opportunity to be represented at- (A) any formal discussion between one or more
representatives of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy or practices
or other general condition of employment.....

Footnote 4 The following abbreviations will be
used: "TR" refers to the transcript; "GC" refers to exhibits of the General
Counsel; "R" refers to exhibits of the Respondent; "Jt" refers to joint
exhibits, "GCBr" refers to the brief of the General Counsel; and "RBr" refers
to the brief of the Respondent. Multipage exhibits will be referenced by an
exhibit number followed by a page or paragraph number.